The current impetus for the development of a legal protection regime for databases stems from the removal of most copyright protection for factual databases by the Supreme Court's unanimous decision in Feist Publications, Inc. vs. Rural Telephone Service Co., 499 U.S. 340 (1991). The Feist Court ruled against the "sweat of the brow" doctrine, and found that only those elements of a database that have the requisite modicum of originality, such as arrangement and selection, currently are entitled to protection under copyright laws. AALL recognizes that the compilers of databases should be protected from misappropriation. However, any new database protection scheme should provide exemptions for users on a par with traditional copyright "fair use" provisions.

Congress has attempted to pass database protection legislation since 1996. During the 105th Congress, Rep. Howard Coble (R-NC) introduced H.R. 2652, the Collections of Information Antipiracy Act which the House attempted unsuccessfully to attach to the Digital Millennium Copyright Act (P.L. 105-304). However, it was pulled from the Act only a few days before passage by the Senate conferees, in part because the Senate had not considered the legislation and also because it lacked any "fair use" exceptions for database users.

During the 106th Congress, Rep. Cobble introduced the Collections of Information Antiparty Act (H.R. 354) that was substantively similar to H.R. 2652 in that it proposed protection for a wide range of factual databases. The library and academic communities opposed this approach because it was overly restrictive of traditional scholarly communication; many of the definitions were overly broad; and database users, including the academic and library communities, could take only limited guidance from the "fair use" provisions. For example, under H.R. 354, nonprofit researchers might use parts of information collections but only so long as the act did not harm the "actual" market for the information. There is no precise definition of how this harm would be accurately measured. Equally troubling was that this new protection scheme would apply to some databases of government information. AALL is firmly committed to ensuring that government information, created by taxpayer money for taxpayer use, should remain available in the public domain.

As a competing bill during the 106th Congress, Commerce Committee Chairman Tom Bliley introduced the Consumer and Investor Access to Information Act of 1999 (H.R. 1858) that presented a more balanced scheme for database protection. It did not overturn the Feist decision, thereby affirming a basic tenet of U.S. information policy that facts are in the public domain. At the same time, companies and individuals investing significant resources in database creation would be protected from misappropriation. H.R. 1858 also allowed for transformative uses of data. Importantly, academic users and others would benefit from H.R. 1858's permissible uses, patterned after traditional copyright "fair use" provisions. Moreover, government information may be exempted from protection by statute or contract, thereby creating better public access to information.

CURRENT STATUS OF DATABASE LEGISLATION IN THE 107TH Congress:

While we believe that there are already laws in effect to protect databases from piracy, including the Digital Millennium Copyright Act, the proponents of database protection are continuing to pressure the House Judiciary Committee to introduce a new bill. This spring, Judiciary Committee Chairman James Sensenbrenner (R-WI) and Energy & Commerce Committee Chairman Billy Tauzin (R-LA) directed their staff to co-host 8 weekly sessions between the proponents and opponents of database legislation. AALL participated in these meetings as part of a diverse and broad coalition that includes libraries, higher education, consumers, and man businesses--including financial services, telecommunications and technology companies.

Each session focused on one specific issue, such as the scope of a new protection, ISP liability, exclusions for government data, or transformative uses. It became increasingly apparent to us during these sessions that the proponents are adamant about creating a broad new intellectual property regime that we believe will stifle the growth of e-commerce, as well as scientific and educational research. Rep. Sensenbrenner has already signaled to Rep. Tauzin that he intends to move forward on database fairly quickly, and that this is an intellectual property issue within the Judiciary Committee's jurisdiction. Staff of the Commerce Committee view database legislation as an e-commerce issue and therefore very much within their own committee's jurisdiction.

This fall, both sides--the proponents and opponents--will be represented during negotiation sessions under the oversight of staff from both House committees to determine whether they can agree to a balanced approach to database legislation. On the Senate side, former Judiciary Committee Chairman Orrin Hatch (R-UT) did not move forward on a database bill during his tenure as committee chairman. However, that may well change since Sen. Patrick Leahy (D-VT) now chairs the Judiciary Committee. This is a hot issue that will begin to take shape this fall, so stay tuned.